Refining details of new civil legal aid scheme

The reform consists of the creation of a quality assurance scheme, a new system of applications and reporting and a new fee structure. As the summer progresses the final details of the scheme will be refined in time for the implementation of the new regime on 1st October, and that prior to that starting date guidance to the profession will be issued.   

Quality Assurance Scheme    

The details of the new Quality Assurance Scheme are being finalised.  There are two aspects to this: registration which is operated by SLAB and peer review which is operated by the Society.  

Under the new registration scheme firms intending to provide civil legal aid and advice and assistance (civil legal assistance) after 1st October 2003 will require to be registered with SLAB.

What is proposed is that SLAB will identify all firms providing civil legal assistance in August 2003.  These firms will be informed that they will be placed on the provisional Civil Register on 1st October 2003.  If a firm does not intend to provide civil legal assistance after 1st October 2003 and therefore does not wish to be registered it will be asked to advise SLAB of this.  Firms should note that in these circumstances, after 1st October 2003,  they would not be permitted to submit any new applications for civil legal assistance after that date although they would be entitled to continue with  existing cases to conclusion and be remunerated accordingly.  After 1st October 2003 any new firm will have to provide details as to how it would comply with SLAB’s registration requirements before it will be registered.

In early October 2003 SLAB will publish on its website the list of firms on the provisional Civil Register, and there will be a link from the Society website to this.  All firms on the Register will be in a position to grant civil legal assistance after 1st October 2003 while they devise and implement procedures to comply with the registration  requirements.  

The procedures envisaged include:

• Procedure for opening, and closing of a file for civil legal assistance, and monitoring its status
• Procedure for recording work carried out for the client, and all material advice tendered to the client as the case proceeds.
• Procedure for ensuring that all solicitors providing civil legal assistance remain acquainted with the Regulations
• Procedure to ensure that all documents and other paperwork submitted to SLAB are in order
• Procedure for the control of incoming and outgoing mail
• Procedure for the periodic review of a sample of cases being conducted under auspices of the civil legal assistance scheme
• Procedure for the review of the conduct of a sample of cases conducted under the civil legal assistance scheme at the conclusion of the case.
• Procedure for dealing with complaints either from the client, the Law Society or from SLAB arising from any civil legal assistance case.
• Procedure for submitting accounts to SLAB and dealing with subsequent correspondence and queries, and recording the receipt of payment.
• Procedure for ensuring that all members of the firm’s admin and support staff are aware of the firm’s procedures and are observing them.

Firms will have until the end of February 2003 to certify to SLAB that they have such procedures in place, failing which they will be removed from the provisional Civil Register from 1st April 2004.  From October to March firms may submit their procedures to SLAB for advice and comment if they would find that useful and SLAB Auditors will be available to visit firms and assist with compliance (on request).  Proforma guidance on procedures will also be issued.   The final Civil Legal Assistance Register will be published during April 2004.

Firms on the Civil Legal Register will be inspected periodically by SLAB and by the Society’s peer reviewers.  

The Society will publish the criteria for the peer reviewers and the guidelines for the profession based on these criteria once these have been considered and approved by the Council of the Law Society at its meeting on 29th August 2003.  The purpose of the reviews is to review the quality of work carried out on behalf of the client, based on the evidence within the file.  The file will be scored against the criteria and draft guidelines which will be available to firms.     

The Society will recruit the reviewers using open selection procedures and training will be provided.  

Practice rules

The Council of the Law Society has approved the draft Solicitors (Scotland) (Civil Legal Aid and Advice and Assistance) Practice Rules 2003 that will put the new quality assurance scheme on a statutory footing.  These draft practice rules were approved by Council on 27th June 2003 and will soon be circulated to the profession before being considered  at the Law Society’s Special General Meeting on 29th August 2003.   Should the rules be made on 29th August they will then be sent to the Lord President for his approval.

New system of Applications and Reporting

The Society has been working with SLAB to discuss the new application and reporting forms.  At the initial application stage the solicitor will be required to give a far more detailed assessment of the prospects of success and the cost of the litigation than is currently the case.  

Further, even where Legal Aid has been granted,  there would be a continuing responsibility to report to SLAB throughout the conduct of the litigation.  Solicitors will require to submit reports to SLAB at key stages as follows:  

• When a proof or debate has been assigned or 12 months after the grant of civil legal aid, whichever is earlier or;
• in family cases involving a child welfare hearing, when a proof or debate has been assigned or six months after the date of the grant of civil legal aid, whichever is earlier.
• Each subsequent 12 months after the initial report.
• When the proceedings have concluded.

SLAB will send a reminder to the solicitor if the initial 6 or 12 month period elapses and they have not received a report.  If a report is provided within 28 days of the due date it will be considered “timeous”.

There will also be ad hoc reports which are unprompted but which should cover any significant developments in a case which SLAB should be made aware of.

It is anticipated that the new application and reporting forms will be produced soon and it has been agreed that these will be piloted by a number of firms in the course of the summer.  They will be able to provide feedback on the forms before they are formally issued before 1st October.

New Fee Structure

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003 have been approved by the Scottish Parliament and will come into force on 1st October 2003.  They provide for the new fee structure of block fees for most cases in the Sheriff Court based on a unit value of £19.00.  This will relate to cases where an application is made after 1st October 2003.  The only exceptions (eg summary applications) are expressly set out.  SLAB are in the process of finalising a new accounts form and guidance on the feeing structure and it is anticipated that it will be available later in the summer.

Consultation

As part of the consultation process the Scottish Executive, SLAB and the Society have set up a Civil Legal Aid Reform User Group to meet with interested organisations to explain and consult on aspects of the reform.  

Roadshows

The Society has written out to the Deans of Faculty asking them if they would like the Society and SLAB to visit them to explain the workings of the new scheme in the course of August.  There will also be Seminars on the reform run by the Update department of the Society in conjunction with SLAB in the autumn to be held in Edinburgh on 1st September, Dumfries on  10th September, Inverness on 15th September, Glasgow on 22nd September, Dundee on 24th September, Edinburgh on 25th September, Aberdeen on 29th September and in Ayr on 1st October.

Review

As part of the reform package it was agreed that the entire scheme should be reviewed by 2005, and it is anticipated that this review will be helpful in addressing any problems which may arise.

It is anticipated that the new reforms to be implemented on 1st October will result in increased access to justice and an increase in fees which was promised by the Justice 1 Committee in November 2001.